United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-41564
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MORALES-OLVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-512-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Morales-Olvera (Morales) appeals his guilty-plea
conviction and sentence for being found unlawfully present in the
United States following deportation and removal, without having
obtained the consent of the Attorney General or the Secretary of
the Department of Homeland Security and after having been
convicted of an aggravated felony. Morales argues that 8 U.S.C.
§§ 1326(b)(1) & (b)(2) are unconstitutional and that Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), should be
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41564
-2-
overruled. He also contends, in light of United States v.
Booker, 125 S. Ct. 738 (2005), that the district court erred in
sentencing him because the court believed that the federal
sentencing guidelines were mandatory, rather than advisory.
Because Morales did not raise the relevant objections in the
district court, we review only for plain error. See United
States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition
for cert. filed (Mar. 31, 2005) (No. 04-9517). Although the
decision in Almendarez-Torres has been called into question, see
Shepard v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas,
J., concurring), the Supreme Court has not overruled it.
Accordingly, this argument is foreclosed. See United States v.
Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
With respect to the district court’s mandatory application
of the sentencing guidelines, Morales concedes that he cannot
demonstrate that the district court would have imposed a
different sentence had it considered the guidelines to be
advisory. Accordingly, he has not established plain error with
respect to his sentence. See Mares, 402 F.3d at 522.
AFFIRMED.